Beale v Trinkler

COUNSEL : Mr S Donaldson SC & B DeBuse for plaintiffs Mr JE Thomson for defendants

SOLICITORS : MacElbing Mednis & Associates for plaintiffs Sparke Helmore Lawyers for defendants

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5235/05 Aileen Ann Beale and Philip Anthony Beale v George Trinkler & Bura Investments Pty Ltd

JUDGMENT 1 His Honour: This matter is the taking of accounts pursuant to an order made by Gzell J on 1 August 2008. In order to understand the nature of the accounts it is necessary to set out some of the background circumstances. These are conveniently set out by his Honour in his judgment of 18 April 2008 reported as Beale v Trinkler [2008] NSWSC 347 and I will incorporate some of his Honour's non-contentious recitation of this background. Background to the proceedings 2 Aileen Beale, the first plaintiff, and Clemelle Way Pty Ltd, a company nominated by the first defendant, George Trinkler, purchased two properties as tenants in common in equal shares in about August 2002. One property was lot 18, Branch Lane, Karuah, New South Wales. It was purchased for $1.55 M. The other was lot 7131 Bucketts Way, Stroud, New South Wales. It was purchased for $200,000. Mr Trinkler and Philip Anthony Beale, the second plaintiff, guaranteed the repayment of moneys borrowed to acquire the properties. 3 It was the intention of the parties that each property would be subdivided, Branch Lane into 100 acre rural lots and Bucketts Way into approximately 27 residential lots. In the meantime, Mr Trinkler and Mr Beale would breed cattle on Branch Lane, the profits to be paid to Mrs Beale and Clemelle Way to service the loans.

4 On a couple of occasions, culminating in a request in 2005, Mr Trinkler asked Mr Beale to buy him out or to sell the properties and wind up the partnerships. On 1 May 2005, it was agreed between Mr Trinkler and Mr Beale that Fagan Simm, who had valued the properties previously, should value them again and that Mr Trinkler should take Bucketts Way and Mr Beale should take Branch Lane and each should take a return of initial contribution, a refund of stamp duty and 50 per cent of any increase in value of the other property. 5 Mr Beale, who is a barrister, drew up heads of agreement on 1 May 2005. They were signed by him and Mrs Beale, signed on behalf of Clemelle Way and signed by Mr Trinkler. They were in the following terms: "HEADS OF AGREEMENT 1. George Trinkler and Philip Beale and Aileen Beale and Clemelleway Pty Ltd hold interests in two properties known as lot 18 Branch Lane Karuah and lot 7131 Bucketts Way Stroud hereinafter Branch Lane and Buckets Way. The parties wish to dissolve their partnership as to the interests in the land but not as to cattle grazing. 2. Both Bucketts Way and the Branch have been valued for the parties and the parties agree as follows a) The Bucketts Way property will be transferred to Trinkler. b) Any interest claim to beneficial interest, accretion, shares or options Trinkler has in the Branch Lane or Clemellway Pty Ltd will be surrendered or transferred to Philip Beale who owns and has owned since 2002 all the issued capital in Clemellway Pty Ltd and Aileen Beale will continue to hold her interest in Branch Lane unaltered in any way. c) Clemellway Pty Ltd and or P. Beale on the one hand and Trinkler or the other shall share equally the cost of the conveyance and stamp duty in respect of the transfer of the Buckets Way from Clemellway Pty and Aileen Beale to Trinkler. d) Any and all guarantees of Trinkler for the loan from the National Australia Bank, Hamilton, Newcastle in respect of the Branch Lane is to be extinguished at the time of settlement of the transfer to Trinkler of Buckets Way. e) Any and all guarantees of P. Beale for the loan from the Commonwealth Bank of Australia in respect of the Bucketts Way is to be extinguished at the time of settlement of the transfer to Trinkler of Buckets Way. f) P. Beale and Clemellway Pty Ltd will allow 50%of the accretion in value of Branch Lane above the original purchase price and stamp duty plus initial contribution. g) Trinkler will allow 50% of the increase in value of Bucketts Way above the amount of the original purchase price plus stamp duty and initial contribution. h) The parties agree to bring into existence any and all documentation including contracts or deeds necessary to effect the agreement herein. i) Trinkler and Clemellway P/ L will each pay half the stamp duty required to transfer Bucketts Way to Trinkler. George Trinkler … Philip Beale … Aileen Beale … Clemellway Pty Ltd …" 6 Fagan Simm valued Branch Lane at $2.4 M and Bucketts Way at $420,000. 7 The sole shareholder and director of Clemelle Way was to have been Mr Trinkler's first wife but she changed her mind. Mr Beale suggested members of Mr Trinkler's family as a replacement but Mr Trinkler rejected all of them. Finally, Mr Beale agreed to become the sole director and to hold the one issued share of Clemelle Way on trust for Mr Trinkler. Mr Beale signed the heads of agreement in his own right and on behalf of Clemelle Way. 8 Mr and Mrs Beale executed a mortgage and guarantee to secure an advance of $1,680,000 to refinance the loan with respect to Branch Lane and to pay Mr Trinkler under the heads of agreement. They also obtained the release of Mr Trinkler from his guarantee for the repayment of the Branch Lane loan. 9 Mrs Beale, Clemelle Way and Mr Trinkler executed counterparts of contracts for sale of Bucketts Way to Mr Trinkler. The exchange of counterparts was to take place on 2 August 2005. The day before, Mr Trinkler instructed his solicitor not to exchange the counterparts. Thereafter, Mr Trinkler took no steps to perform his part of the heads of agreement. On 17 November 2005 Mr Trinkler's solicitors purported to rescind the heads of agreement. Disputes subsequently arose with respect to the cattle breeding partnership and the rights and obligations of Mr Beale and Mr Trinkler thereunder. 10 Mr and Mrs Beale sought specific performance of the heads of agreement or, alternatively, the oral agreement that preceded it. His Honour granted specific performance. There was an appeal to the Court of Appeal but that was dismissed. See Trinkler v Beale & Ors [2009] NSWCA 30. 11 The order made by his Honour for the taking of accounts was in the following form: "The balance of the proceedings are referred to an Associate Justice for the taking of accounts and determination of the balance of any relief in relation to the winding up of the cattle partnership between the second plaintiff and the first defendant." 12 The oral cattle breeding and fattening partnership was entered into at the time of the venture for the subdivision of the land. The partners envisaged that profits from the cattle breeding and fattening partnership would be available to assist in servicing the loans taken out to acquire the properties. The partners in the cattle breading partnership were Mr Beale and Mr Trinkler.

13 The cattle breading partnership was dissolved as a result of the operation of s 32(c) of the Partnership Act 1892 and the service of the summons filed on 4 October 2005. See Unsworth v Jordan [1896] WN 2. The issues in the proceedings

14 These appear to be the following at this stage of the hearing:

Before any distribution of profits of the cattle breeding partnership between Mr Beale and Mr Trinkler, should there be an allowance made for: (a) an amount to be credited to Mr. Beale for payments of interest since 1 May 2005 in connection with the borrowings from the National Australia Bank used to finance the purchase of the Branch Lane property.

(b) If so, should the amount credited to Mr Beale: i. be capped at the amount of profit earned by the partnership during the period since 1 May 2005; or

ii. limited to an amount representing the agistment value of the property; or

iii. be limited to an amount representing the reasonable value of agistment of partnership cattle held on the property throughout that period.

At what rate should agistment be calculated for the purpose of the calculation referred to above?

Should there be an adjustment made in favour of Mr Trinkler by way of remuneration for his services in the period since 1 May 2005 and if so, at what rate?

Should there be an adjustment in favour of Mr Trinkler to take account of expenses incurred by him in the conduct of the partnership business since 1 May 2005?

Should there be an adjustment in favour of Mr Trinkler for the proceeds of sale of the cattle owned by him paid to the partnership account?

Should there be an adjustment to either party to take account of consultants' fees paid out of the partnership account?

The proper treatment of $6596.27 paid on 21 October 2008 to Bura Investments Pty Ltd, a company owned by Mr Trinkler.

15 I turn to each of these issues. An allowance for occupation of the property 16 The plaintiffs contend that the correct amount is the amount required to service the borrowings from the National Australia Bank used to finance the purchase of the Branch Lane property. This was said to arise from an agreement made before dissolution of the land partnership. 17 The evidence suggested for such an agreement was first some evidence from Mr Beale in the trial before Gzell J that Mr Beale and Mr Trinkler mutually agreed that the cattle partnership would pay rent in an amount sufficient to fund the NAB borrowings. It was also suggested that Mr Trinkler had adopted this position in paragraph 20A(c) of his amended cross-claim. 18 However, in cross-examination before me Mr Beale made it clear that prior to the commencement of the partnership that the difference between him and Mr Trinkler was whether they would be able to fund the partnership completely from cattle sales. 19 There was also evidence before me in paragraph 4 of Mr Beale's affidavit sworn 25 August 2009 in these terms: "4. Upon purchase of the Branch Lane property Mr Trinkler and I made a contribution by way of our cash funds and borrowed $1,085,000.00 from the National Australia Bank, Hamilton, Newcastle (the loan). At the commencement of our partnership, Mr Trinkler and I had a conversation to the following effect:

Beale: "George, we should pay the mortgage on the property by paying rent to Clemelle Way and Aileen and they will then pay the mortgage with it. This will mean that one or both of them will have a GST liability on the rental income of ten per cent. You and I will get a tax deduction for the rent and Clemelle Way and Aileen will deduct the interest from the rent and come out square at the end of the financial year." Trinkler: "Just like what happens with rent I get on my rental house in Stroud?"

Beale: "It's the same thing. In this case the GST will have to be paid by us because Clemelle Way and Aileen will not have any other income other than the rent we pay. I think the best way is to register Clemelle Way for GST and pay the whole GST through Clemelle Way and you and I fund that GST payment for Clemelle and Aileen."

Trinkler: "I suppose its got to be paid. We will pay half each to Clemelle Way when the GST is worked out."

Beale: "That's right, but it won't have to be paid until the returns are lodged next year. " 20 It is apparent from cross-examination that that conversation was some time after the commencement of the partnership. The terms of the conversation fix the rent as being equal to the amount of the finance charges but there is no agreement as to the duration of the agreement. 21 It seems clear that the parties agreed that the profits from the cattle partnership would be used to meet the interest liability by way of rent. No doubt the agreement led to the appropriate charges in the account each year up until the parties agreed to dissolve their arrangement in May 2005. 22 So far as the allegation in the amended cross-claim is concerned Mr Trinkler correctly pointed out that the pleading did not allege a lease agreement for any term. The allegation seems to be based upon an assumption that the past manner of rent charges was continuing. That view does not seem to have been adopted by the Court of Appeal which said: '55 A final matter is that the appellant contended that a separate reason why he did not receive full value for his share in Clemelle Way Pty Limited was that the Heads of Agreement contemplated the continuation of the cattle grazing/breeding partnership and that that was disadvantageous to him because that partnership was paying rent to the owners of the property at a rate in excess of its lease or agistment value, the difference being designed to cover finance costs on the facility obtained to purchase the property.

56 The appellant's case on this point was described in his Amended Cross Claim as follows: "Through his on-going involvement in the cattle partnership Trinkler was unknowingly continuing to pay for or materially subsidising Aileen Beale's and Clemelle Way's finance expenses to maintain ownership of the Branch Lane property". 57 This pleading aptly illustrates that the appellant's complaint as to this matter in truth relates to the conduct of the cattle grazing/breeding partnership and not to that of the property partnership or to the value of his interests in it. If, as the appellant asserts, the cattle partnership has paid excessive rental to interests associated with one of the partners that will be a matter to be considered by the Associate Justice to whom matters concerning that partnership have been referred by the primary judge, the order having been made that: "The balance of the proceedings are referred to an Associate Justice for the taking of accounts and determination of the balance of any relief in relation to the winding up of the cattle partnership between the second plaintiff and the first defendant". 58 In my view, the Heads of Agreement document did not purport to, or in fact, deal with the cattle partnership. The reference to that partnership in clause (I) was only to ensure that there was no doubt that it was not affected by the Heads of Agreement. As it was not suggested that Clemelle Way Pty Ltd was a partner in the cattle partnership or that the property partnership had a right, which constituted a valuable asset, to receive in the future above-market rental from the cattle partnership, the appellant's complaint did not in my view impact on the issue presently under consideration, namely, whether the appellant received "full value" for his share in Clemelle Way Pty Ltd. " 23 Given that the arrangement had no term plainly either party could refuse to adopt it for any future year. There is no agreement that it would apply after dissolution of the property partnership. Indeed, there are good reasons for the arrangement to be no longer relevant. Upon dissolution each partner took their own property under the heads of agreement and became liable only for their own share of borrowings. 24 In the absence of any concluded agreement binding upon both the owners it seems to me that the appropriate basis for an allowance would be an allowance for an appropriate agistment fee for a number of cattle which the partnership had on the landowners' property at the time. After 1 May 2005 the owners of Branch Lane were Clemelle Way Pty Ltd and Aileen Beale and the allowance will have to be made to these two parties. 25 The reason for limiting the claim to the number of cattle the partnership had on the property is the fact that the basis for the claim is a claim for unjust enrichment and it is only for the amount of the unjust enrichment that the appropriate recompense must be made. Agistment Value 26 Mr Anthony Bowe, gave evidence on behalf of the plaintiffs as to the appropriate rates of agistment for cattle for the past five years as an average as follows:

(a) Dry cow (without calves) $4.00 plus GST per unit per week. (b) Cows with calf unit up to a weaning age of 8 to 9 months $5.00 plus GST per unit per week. (c) Weaners left on the property after weaning at 8 to 9 months $3.00 plus GST per unit a week. 27 Mr William Dwyer who gave evidence on behalf of Mr Trinkler disagreed with Mr Bowe's estimate and said that a reasonable market rate of agistment for cattle at the rates of agistment from 1 May 2005 to 30 April 2007 was as follows:

(a) Dry cow (without calves) $2.50 - $3.00 plus GST per unit per week. (b) Cow with calf unit up to a weaning age of 8 to 9 months $3.00 to $4.00 plus GST per unit per week. (c) Weaners left on the property after weaning at 8 to 9 months $2.00 plus GST per unit per week. 28 Mr Dwyer gave evidence that for the period after 1 May 2007 the relevant rates of agistment for cattle were as follows:

(a) Dry cow (without calves) $2.00 - $2.50 plus GST per unit per week. (b) Cow with calf unit up to a weaning age of 8 to 9 months $2.50 to $3.00 plus GST per unit per week. (c) Weaners left on the property after weaning at 8 to 9 months $2.00 plus GST per unit per week. 29 Although Mr Bowe and Mr Dwyer both had good qualifications I note that Mr Dwyer had extensive local knowledge and he was frequently involved in agistment of cattle for landowners and on his own behalf. An important difference between the two valuers was that Mr Dwyer had allowed for a change in the market based on changed climate conditions affecting the rate from 1 May 2007. Mr Bowe's explanation for suggesting no change in the market did not seem to be appropriate. 30 It clear from Mr Bowe's evidence that he also relied on evidence of other valuers who had passed on their property experience in the Upper Hunter Valley with which Mr Bowe was not familiar. It was true that Mr Bowe had some rates based on two agistment agreements for subject property. However, one of these agreements was from a distressed client who was probably not in a position to make a bargain. 31 In my view Mr Dwyer's evidence is to be preferred and his rates should be adopted at the mid-point of his range of rates for the number of cattle on the property. Should there be an adjustment made in favour of Mr Trinkler by way of remuneration for his services in the period since 1 May 2005 and if so, at what rate? 32 This should only be from the time of dissolution, as in the absence of any agreement to the contrary, there is no right to payment for the services provided to the partnership by a partner. In this case there was no such agreement. However, after dissolution the situation was different. In Lindley & Banks on Partnership 18th ed (2002) at [20-48] the authors said :

"Before the Partnership Act 1890, the general rule was not applied in the case of services rendered by a partner in carrying on the firm's business following a dissolution. On that basis, a surviving partner who had carried on the business to its ultimate benefit was held to be entitled to remuneration for his trouble in so doing, unless no profits were realised or there was some special reason for denying his entitlement. Both Lord Lindley and the editor of the 6 th edition of this work apprehended that, in this respect, the Act had not altered the law, a view which proved to be amply justified when it was subsequently held that a partner appointed as a receiver and manager without remuneration in a dissolution action was entitled to wages for work done by him which proved beneficial to the business, even though such work formed no part of his duties as receiver and manager." 33 The case where this view of the law was confirmed is Harris v Sleep (1897) 2 Ch 80, a decision of the Court of Appeal lead by Lindley LJ, who described the objection to an allowance in that case as "a shabby one." This approach is supported also by a dictum of Younger LJ, speaking in a case that confirmed that accounts would need to be taken to resolve the dispute between the partners in Meyer & Co v Faber [1923] 2 Ch 421 at 450-1: "I do not see how there could be denied to the defendant some proper allowance in respect to the expense and trouble to which he was put in conducting the winding up of this business prior to the winding up order. In my own experience of the administrative work of these windings up, such an allowance was, I think, almost invariably made." 34 At [25-31] the learned authors confirm the same practice has survived in the context of the UK equivalent of section 42 of the Partnership Act 1892. The order of Romer J in Manley v Sartori [1927] 1 Ch 157 is cited as one of a number of examples. However it is clear that the exception is not confined to section 42 contexts. Section 42 states: 42 Right of outgoing partner in certain cases to share profits made after dissolution

(1) Where any member of a firm has died, or otherwise ceased to be a partner, and the surviving and continuing partners carry on the business of the firm with its capital or assets without any final settlement of accounts as between the firm and the outgoing partner, or the partner's estate, then, in the absence of any agreement to the contrary, the outgoing partner or the partner's estate is entitled, at the option of the partner or the partner's representatives, to such share of the profits made since the dissolution as the Court may find to be attributable to the use of the partner's share of the partnership assets, or to interest at the rate of six per centum per annum on the amount of the partner's share of the partnership assets.

(2) Provided that where, by the partnership contract, an option is given to surviving or continuing partners to purchase the interest of a deceased or outgoing partner, and that option is duly exercised, the estate of the deceased partner, or the outgoing partner or the partner's estate, as the case may be, is not entitled to any further or other share of profits; but if any partner assuming to act in exercise of the option does not in all material respects comply with the terms thereof, the partner is liable to account under the foregoing provisions of this section. 35 The plaintiffs suggested that remuneration for the supply of services should be limited to where there is a use of an outgoing partner's capital. They made reference to Cameron v Murdoch (No 2) [1984] WAR 278 and pointed specifically to ss 55(3) of the Partnership Act 1895 (WA) which was examined in that case. Sections 55(1) and (2) of the WA Act are essentially the same as the NSW Act. There appears to be no NSW equivalent of ss 55(3) of the WA Act which states: (3) In determining how far the profits made since the dissolution are attributable to the outgoing partner's capital, the court shall have regard to the nature of the business, the amount of capital from time to time employed in it, the skill and industry of each partner taking part in it, and the conduct of the parties generally. And the court may allow to any such continuing partners such remuneration as to the court seems meet for carrying on the partnership business. 36 The plaintiffs have submitted that the principle which appears in ss 55(3) is of no application in the context of the exercise being undertaken by this Court. This it is said is not a claim by an outgoing partner against surviving partners for recovery of monies earned through the use of his capital. However s 55 (3) appears to expressly incorporate the principle referred to by the authors of Lindley that is said to operate in the context of s 42 of the NSW Act. As the plaintiffs submit this is not a claim by an outgoing partner against surviving partners to recover money earned through the use of his capital as both partners were involved in the business and the use of stock for that purpose after dissolution. 37 The statutory provisions are different from the present situation in New South Wales and that to which the authors of Lindley & Banks on Partnership were referring. I am of the view that ss 55(3) of the West Australian Act is simply a statutory recognition of the common law position which applies in New South Wales. 38 A case dealing with similar provisions to those in New South Wales was the English case of Emerson v Emerson [2004] EWCA Civ 170. The case concerned a dairy partnership where a partner had died and the surviving partner carried on the business after the death. There was a compulsory cull of the dairy heard due to foot and mouth disease. 39 A question arose as to an allowance to the surviving partner. The Court discussed the problem in this way. 14. The only issue in the present case, as it seems to me, is whether Mr Thomas Emerson should be entitled to some allowance as surviving partner and trustee for the cost to him of keeping the livestock between the death of his brother in August 1998 and the cull in April 2001. At the risk of stating the obvious, animals kept on a farm are unlikely to stay alive and in good condition unless they are fed and cared for. If they are to be fed then either grass has to be fertilised for that purpose or hay or other food stocks have to be bought in. It may well be that grass has to be cut to be made into hay, haylage or silage. That costs money. Is there to be any recompense for that outlay; or is the estate of Mr Harry Emerson to have the value of the herd, as realised following the cull, free of any obligation to contribute to the cost of keeping the cattle alive, so that there was a herd to be culled in April 2001?

15. The principle, as it seems to me, is conveniently found in a sentence at the beginning of the speech of Lord Templeman in Carver v Duncan [1985] 1 AC 1082 at 1120 between B and C: "Trustees are entitled to be indemnified out of the capital and income of their trust fund against all obligations incurred by the trustees in the due performance of their duties and the due exercise of their powers." It has not been suggested -- and could not sensibly be suggested -- that Mr Thomas Emerson was acting in excess of his powers in keeping this herd intact following the death of his brother in August 1998. Indeed, had Mr Thomas Emerson allowed the herd to deteriorate in condition and die through lack of food no doubt the estate of his brother would be loud in complaint; and rightly so. The only question therefore is: what amount should be allowed to Mr Thomas Emerson in respect of the performance of his obligations in preserving the partnership assets pending realisation by sale or, as happened in this case, compulsory slaughter and compensation? 40 The situation in Emerson v Emerson is similar to the present case and in my view it would be appropriate for some remuneration to be paid subject to the following matters. 41 These matters involve the question of what Mr Beale has done to contribute to the partnership affairs. He has continued to visit the property every fortnight on average to check stock and fences and he has participated in activities on the property. 42 The answer to this submission is that Mr Beale has not made a claim in these proceedings for this amount and he has not sought to identify in detail his time and the rate at which he should be paid. 43 Mr Trinkler kept appropriate records of his time and although it is suggested that he may have used the opportunity to check his own property at the time I am prepared to accept his evidence in this regard that he did not do so. 44 Having regard to the range of duties which would be undertaken it seems to me that an appropriate rate would be $30.00 per hour for services provided by Mr Trinkler to the partnership.

Should there be an adjustment in favour of Mr Trinkler to take account of expenses incurred by him in the conduct of the partnership business since 1 May 2005? 45 There were a number of claims made by Mr Trinkler in an invoice dated 8 August 2008. I will deal with the items where he has supported the amounts. 46 There is claim for $5,600 for supply of chicken litter for fertilizer for the property. There does not seem to any doubt that the amount was supplied. Mr Trinkler also made a claim for $2,340 for the use of his machinery. However, as is apparent from his own evidence Mr Beale also used his machinery on another occasion and, accordingly, I do not think it appropriate to allow any use of machinery by Mr Trinkler. 47 I will allow the amount of $5,600 for supply of chicken litter. 48 On 22 December 2006 there was a cattle muster where Mr Trinkler claims he paid $1,000 in cash to stockmen engaged in the muster. There was another muster on February 2006 when he paid $900 to stockmen. He gave evidence that on both occasions he cashed a cheque to pay the stockmen and he swore to having paid the stockmen the amounts in question. Mr Beale gave some evidence of occasions when he contributed money to pay the stockmen. This might well be the case but having regard to the timing I accept Mr Trinkler in respect of these payments. 49 Mr Trinkler's payments to these stockmen are allowed. 50 There is an invoice dated 31 December 2006 from Stroud Hardware for $982.10 for unidentified items. Mr Trinkler says he has paid the amount but has no proof of payment annexed to his affidavit. There has now been tendered invoice 3772 to support the claim which is mainly for medication which is stamped "paid". 51 I am prepared to accept that Mr Trinkler made this payment. I allow this item. 52 In December 2007 there was said to be approximately $900 paid for medication. During the hearing an invoice for items totaling $912.25 was tendered. Although there was some dispute about the extent cattle can contract pink eye I do not think this is relevant as there are occasions when cattle can suffer this problem. 53 I am prepared to accept Mr Trinkler's evidence and I allow the amount of this claim. 54 There was a claim for payment of $300 to stockmen for mustering on 25 March 2007. Mr Trinkler has sworn to the payment and given that his diary records the payment I will allow this amount. 55 There is a claim in the invoice for traveling expenses being based upon a rate of 67 cents per kilometer in 2006 and 70 cents in per kilometer in 2007 and 2008. The only evidence on this aspect is that Mr Trinkler's accountant advised him that he could claim this amount for travel expenses. In the absence of any other proof of this amount it should not be allowed and in any event it would not be allowed if there were no profits out of which it could be claimed. 56 Any other items in the account of 8 August 2008 are not allowed. 57 I have dealt separately with the claim for hours worked.

Should there be an adjustment in favour of Mr Trinkler for the proceeds of sale of 22 September 2005 cattle sale? 58 This claim arises because on 8 September 2005 Mr Trinkler says that at a cattle sale to sell a number of partnership cattle, some of his own cattle were also sold. The sale proceeds from all the cattle including what Mr Trinkler alleges were his cattle, were paid and disbursed through the partnership. The sale proceeds of what Mr Trinkler says were his cattle amounted to $12,352.37. That amount together with interest is currently held in a controlled monies account pending the resolution of the dispute about whether they were Mr Trinkler's cattle or partnership cattle. 59 In support of the claim there was evidence from Mr Gorton who operated a livestock transport business. He detailed the conversations he had with Mr Trinkler and the arrangement to pick up partnership cattle from the partnership property as well as an arrangement to pick up 16 cattle from Mr Trinkler's two properties and take them to the sale. 60 The invoices from the selling agent, Dwyer Young, support the claim set out at page 206 and 207 of Mr Beale's affidavit. They show that 16 head of cattle were sold on behalf of Bura Investments and the balance on behalf of the partnership. 61 One document which is contrary to this claim is an invoice from the carrier, Mr Gorton, for transport which suggests that the partnership had 101 head of cattle and that Mr Trinkler had 9 head of cattle. The total of these two amounts comes to the same total as in the two sale invoices to which I have referred. 62 Mr Gorton conceded in his evidence in chief that he had made a mistake in his invoice in which he charged for carrying 9 head of cattle from one of Mr Trinkler's properties. Cross-examination of Mr Gorton demonstrated that there were other documents which were contemporaneous records which normally would have been available but they had been destroyed in a flood which affected Mr Gorton's records. It is plain that a substantial part of Mr Gorton's recollection arose from discussions with his son about the event. By the time he had these discussions and swore his affidavit the event had occurred some three years earlier. One fact which tends to support the claim that Mr Trinkler's cattle were 16 head of cattle rather than 9 head of cattle is the fact that when the cattle were off-loaded from the truck, it was Mr Gorton who had to identify to the selling agent which cattle belonged to which person and they were segregated at that stage. 63 There is thus a basis for the selling agent acting in this way when they prepared the selling invoices. 64 In the absence of any other evidence to suggest something unusual on that day, I am satisfied that the evidence given by Mr Gorton was correct and, accordingly, there were 16 head of cattle belonging to Mr Trinkler transported to the cattle sale. 65 In these circumstances the amount should be released to Mr Trinkler.

Should there be an adjustment to either party to take account of consultants' fees paid out of the partnership account? 66 These expenses are in respect of the property partnership and are in respect of one property in one case and both properties in the second case. If they have been paid by the cattle partnership:

(a) the amount of $4,180 should be set off against the amount owed for agistment.

(b) the amount of $11,264 as to one half should be set off against the amount owed for agistment and one half charged to Mr Trinkler. The proper treatment of $6,596.27 paid on 21 October 2008 to Bura Investments Pty Ltd, a company owned by Mr Trinkler. 67 This needs further investigation by the defendant. 68 I reserve further consideration of this matter once Mr Trinkler has had time to respond to these late claims. Liability of the partnership for GST 69 This needs further investigation by the defendant. 70 I reserve further consideration of this matter once Mr Trinkler has had time to respond to these late claims. 71 I direct the parties to confer as to whether any of the above matters need further clarification and for them to advise what further matters require to be attended to within fourteen days from today's date.

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